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HomeMy WebLinkAboutZA2021-057 - APPROVING MINOR USE PERMIT NO. UP2021-026 TO ADD A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE (ON-SALE BEER AND WINE) TO AN EXISTING FOOD SERVICE EATING AND DRINKING ESTABLISHMENT LOCATED AT 240 NEWPORT CENTER DRIVE, SUITE 100 (PA2021-135)RESOLUTION NO. ZA2021-057 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2021-026 TO ADD A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE (ON-SALE BEER AND WINE) TO AN EXISTING FOOD SERVICE EATING AND DRINKING ESTABLISHMENT LOCATED AT 240 NEWPORT CENTER DRIVE, SUITE 100 (PA2021-135) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Wild Strawberry Cafe (“Applicant”) with respect to property located at 240 Newport Center Drive, Suite 100, and legally described as Lot PCL 5 in Tract 0289, requesting approval of a minor use permit. 2. The applicant proposes to allow an existing food service, eating and drinking establishment (Wild Strawberry Cafe) to add a Type 41 (On-Sale Beer and Wine) Alcoholic Beverage Control (ABC) License. The request does not include any physical changes to the existing establishment. The hours of operation will remain 8:00 a.m. to 6:00 p.m., daily. The existing Minor Use Permit No. UP2003-051 (PA2003-295), Staff Approval No. SA2004-018, and Outdoor Dining Permit No. OD2004-002 (PA2004-220) shall remain in full force and effect. 3. The subject property is designated Regional Commercial Office (CO-R) by the General Plan Land Use Element and is located within the Office-Regional (OR) Zoning District. 4. A public hearing was held on October 14, 2021, online via zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The existing establishment consists of 300 square feet of interior net public area, a 75- square-foot outdoor dining area, kitchen facilities, indoor storage and washing areas, a restroom, and a covered trash enclosure with gate. The application involves a request for an operational change (adding beer and wine alcohol sales) and does not involve any physical expansion to the existing food service use. Therefore, the project qualifies for a Class 1 exemption. Zoning Administrator Resolution No. ZA2021-057 Page 2 of 14 01-25-19 SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code (NBMC), the following findings and facts in support of the findings for a use permit are set forth: Finding A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support of Finding In finding that the proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the Zoning Code, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The proposed establishment is located within Reporting District 39, wherein the number of crimes is higher than adjacent Reporting Districts and the City. RD 43, 44, and 47 have a lower number of crimes as they are primarily residential with few commercial uses. Due to the high concentration of commercial land uses in Fashion Island, the crime rate and shoplifting rate is greater than adjacent residential Reporting Districts; however, the Newport Beach Police Department (NBPD) does not consider the number significant given the type of development within this Reporting District. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. Due to the high concentration of commercial land uses, the calls for service and number of arrests are greater than adjacent Reporting Districts. DUI, Public Intoxication, and liquor law violations make up 16 percent of arrests in this reporting district. In comparison, the figure for neighboring RD 47 is 23 percent, RD 43 is 51 percent, and RD 44 is 18 percent. The Police Department does not consider the rate high because of the concentration of restaurants and commercial uses at Fashion Island located to the north and the surrounding Newport Center area. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1. The subject site does not abut sensitive land uses and is separated from other uses by parking lots, roadways, and other commercial uses. The site is located Zoning Administrator Resolution No. ZA2021-057 Page 3 of 14 01-25-19 approximately 1,300 feet to the nearest residential district (Granville Community), 4,000 feet to the nearest day care center (Del Mar Lincoln Child Development), 800 feet to the nearest park and recreation facility (Civic Center Park), 4,000 feet to the nearest place of religious assembly (Community Church Congregational), and 3,000 feet to the nearest school (Harbor View Elementary School). Due to the proximity from these establishments the proposed change of use does not appear to create foreseeable concern. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. 1. Muldoon’s Irish Pub is located at 202 Newport Center Drive to the north of the project site at the intersection of Anacapa and Newport Center Drive. Muldoon’s is authorized to operate until 2:00 a.m. and provides live entertainment, dancing, and Type 47 (On Sale General) and Type 68 (Portable Bar) alcohol licenses. Off- sale alcohol sales are located in the vicinity at Whole Foods, at 461 Newport Center Drive, within Fashion Island. Additionally, there are many comparable restaurant establishments with the Fashion Island Shopping Center. These include other pad restaurant tenants such as Red-O and Fig & Olive. The Type 41 (On-Sale Beer and Wine) alcohol license requested is similar as those obtained for said establishments and there is no evidence suggesting these uses have been detrimental to the neighborhood. 2. The per capita ratio of on-sale alcohol license is one (1) license for every 15 residents and is higher than the adjacent districts and the average ratio for Orange County. The Police Department does not anticipate any increase in crime or alcohol-related incidents with the approval of this application subject to the proposed conditions of approval. 3. Due to the type and operation of the restaurant which is conditioned to close at 6:00 p.m. with limited net public areas, and the incorporation of additional conditions to prevent the restaurant from operating as a bar or lounge, the proximity to other establishments does not appear to create foreseeable concern. v. Whether or not the proposed amendment will resolve any current objectionable conditions 1. The existing commercial building has been occupied by a food service, eating, and drinking establishment since 2004. The site has an existing non-compliant outdoor patio area that is over the allowable 75 square feet in area. Staff has worked with the applicant to ensure that the existing non-compliant outdoor patio area shall comply with the originally approved Outdoor Dining Permit No. OD2004-002 (PA2004-220) by October 8, 2021. 2. The Project has been reviewed and conditioned to help ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. The Zoning Administrator Resolution No. ZA2021-057 Page 4 of 14 01-25-19 service of alcohol is intended for the convenience of customers dining at the establishment. Operational conditions of approval recommended by the Police Department relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize alcohol-related impacts. All employees serving alcohol will be required to complete a certified training program in responsible methods and skills for selling alcoholic beverages, as required by the State of California. 3. Offering alcohol service will complement the food service and provide a convenience to customers. The Police Department has no objections to the operation given the proposed hours of operation, license type, and location of the use. The resolution includes conditions of approval to limit objectionable conditions related to noise and trash from the establishment. Minor Use Permit In accordance with Section 20.52.020.F (Findings and Decision) of the Newport Beach Municipal Code, the following findings, and facts in support of the findings for a minor use permit are set forth: Finding B. The use is consistent with the General Plan and any applicable specific plan, Facts in Support of Finding 1. The General Plan designates the site as Regional Commercial Office (CO-R), which applies to areas where it is the intent to provide for corporate, administrative, and professional offices that serve local and regional markets, with accessory limited financial, retail, service, and entertainment uses. 2. The proposed alcohol services are consistent with the CO-R designation as it is related to the existing commercial food service use intended to serve nearby residents, the surrounding community, and visitors to the City of Newport Beach. 3. The subject property is not part of a specific plan area. Finding C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code, Zoning Administrator Resolution No. ZA2021-057 Page 5 of 14 01-25-19 Facts in Support of Finding 1. The subject property is located in the Office Regional Commercial (OR) Zoning District and as designated Regional Commercial Office (CO-R) within the Land Use Element of the General Plan. These categories are intended to provide for corporate, administrative, and professional offices that serve local and regional markets, with accessory limited financial, retail, service, and entertainment uses. The proposed full service, eating and drinking establishment with alcohol service and no late hours requires a new minor use permit pursuant to Table 2-5 of Newport Beach Municipal Code Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) and pursuant to Code Section 20.54.070 C. (Changes to an Approved Project). 2. The existing food service establishment operates under existing Use Permit No. UP2003-051 (PA2003-295). Conditions from the existing use permit will remain with the new use permit and the net public areas and hours of operation will remain unchanged. 3. As conditioned, the proposed project will comply with Zoning Code standards for eating and drinking establishments. Finding D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Facts in Support of Finding 1. The existing establishment consists of 300 square feet of interior net public area, a 75-square-foot outdoor dining area, kitchen facilities, indoor storage and washing areas, a restroom, and a covered trash enclosure with gate. No physical changes are proposed. 2. The hours operation of the existing food service will remain restricted to the hours between 8:00 a.m. and 6:00 p.m., daily. These hours are consistent with the business hours of other uses in the area. 3. The surrounding area contains various, retail and visitor serving commercial uses including restaurants with alcohol service. Adding the alcohol service to the existing food service is compatible with the existing and permitted uses within the area. 4. The operational conditions of approval relative to the sale of alcoholic beverages will help ensure compatibility with the surrounding uses and minimize alcohol-related impacts. The project has been conditioned to ensure that the business remains a restaurant and does not become a bar or tavern. Additionally, dancing or live entertainment is not permitted. Zoning Administrator Resolution No. ZA2021-057 Page 6 of 14 01-25-19 5. The existing common enclosed trash storage area located approximately 140 feet to the north is adequate to accommodate the proposed food service use and is conveniently located where materials can be deposited and collected and does not impede with parking. Finding E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Facts in Support of Finding 1. The existing food service establishment provides adequate public and emergency vehicle access, public services, and utilities. 2. The site is accessible from both Civic Center Drive to the south and a Anacapa Drive to the west. Finding F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, and safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding 1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The limited hours reduce impacts to surrounding land uses and sufficient parking is available for the existing food service establishment. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The outdoor dining patio has been conditioned to provide stanchion and rope barriers to define the alcohol service area. 3. The food service, eating and drinking establishment serves the surrounding community in a commercial area designed for such uses. The additional service of alcohol is provided as a public convenience and is not uncommon in establishments of this type. Additionally, the service of alcohol will provide an economic opportunity for the property owner to maintain a successful business that is compatible with the surrounding community. Zoning Administrator Resolution No. ZA2021-057 Page 7 of 14 01-25-19 4. All owners, managers, and employees selling or serving alcohol will be required to complete a Responsible Beverage Service Certification Program. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2021-026 (PA2021-135), subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. The existing Minor Use Permit No. UP2003-051 (PA2003-295), Staff Approval No. SA2004-018, and Outdoor Dining Permit No. OD2004-002 (PA2004-220) shall remain in full force and effect. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 14th DAY OF OCTOBER, 2021. Zoning Administrator Resolution No. ZA2021-057 Page 8 of 14 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the approved site plan and floor plan stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The existing non-compliant outdoor patio area shall comply with the originally approved Outdoor Dining Permit No. OD2004-002 (PA2004-220) by October 8, 2021. 4. The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 5. This Minor Use Permit may be modified or revoked by the Zoning Administrator if it is determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Minor Use Permit or the processing of a new minor use permit. 7. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 8. Fences, walls, or similar barriers shall serve to define the outdoor dining area, shall meet the minimum requirements required by the Alcoholic Beverage Control License, and shall not constitute a permanent all-weather enclosure. The barrier shall match the approved use permit plan, shall be in-line with the existing outdoor dining area and shall not obstruct the adjacent public walkway. 9. All proposed signs shall be in conformance with any approved Comprehensive Sign Program for the project site and provisions of Chapter 20.42 of the Newport Beach Municipal Code. 10. All lighting shall conform with the standards of NBMC Section 20.30.070 (Outdoor Lighting). The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. Zoning Administrator Resolution No. ZA2021-057 Page 9 of 14 01-25-19 11. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. Police Department 12. The Alcoholic Beverage Control License shall be limited to a Type 41 (On-Sale Beer and Wine). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Use Permit. 13. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every three years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner’s manager’s and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 14. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. 15. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 16. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 17. There shall be no live entertainment or dancing allowed on the premises. 18. Food service from the regular menu shall be made available to patrons until closing. 19. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 20. Any event or activity staged by an outside promoter or entity, where the applicant, operator, owner or his employees or representatives share in any profits or pay any percentage or commission to a promoter or any other person based upon money Zoning Administrator Resolution No. ZA2021-057 Page 10 of 14 01-25-19 collected as a door charge, cover charge or any other form of admission charge is prohibited. 21. “VIP” passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 22. Strict adherence to maximum occupancy limits is required. 23. The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 24. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 25. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 26. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 27. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Wild Strawberry Cafe including, but not limited to, Minor Use Permit No. UP2021-026 (PA2021-135). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Zoning Administrator Resolution No. ZA2021-057 Page 11 of 14 01-25-19 CONDITIONS FROM PREVIOUS APPROVALS FOR REFERENCE Use Permit No. UP2003-051 (PA2003-295) 1. The project shall be in substantial conformance with the approved plot plan, floor plan, and elevations, except as noted in the conditions of approval. (No longer applicable, refer to Condition No. 1). 2. Hours of operation shall be limited between 7:00 a.m. and 6:00 p.m. daily. Any increase in the hours of operation shall be subject to the approval by the Planning Director. Any request for operating hours between 6:00 p.m. and 7:00 a.m. shall require approval by the Planning Commission. 3. The “net public area” shall be limited to a maximum of 1,000 square feet (exclusive of display, aisle and condiment table areas), except as otherwise required by the Building Department to satisfy handicap access requirements may allow modest deviations from that requirement. (Replaced by Condition No. 2 of OD2004-002). 4. The operator of the food service establishment shall be responsible for the control of noise generated by the subject facility. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. That is. The sound shall be limited to no more than depicted below for the specified time periods: Between the hours of 7:00 a.m. and 10:00 p.m.; Between the hours of 7:00 a.m. and 10:00 p.m.; Measured at the property line of commercial zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 60 dBA 50 dBA 5. No outside paging system shall be utilized in conjunction with this food service establishment. 6. Exclusive customer seating and/or stand-up counter space shall be prohibited outside of the subject eating and drinking establishment (outdoor dining or seating outside of the facility is prohibited, unless an accessory outdoor dining permit is first approved). Any increase of seating and/or stand-up counter space for more than 17 patrons shall require the approval of an amendment to this use permit (Replaced by Condition No. 1 of SA2004- 018). 7. Trash receptacles for patrons shall be conveniently located both inside and outside of the proposed facility, however, not located on or within any public property or right-of-way. 8. The applicant shall maintain the trash dumpsters or receptacles so as to control odors that may include the provision of fully self-contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Zoning Administrator Resolution No. ZA2021-057 Page 12 of 14 01-25-19 9. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 10. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., unless otherwise approved by an amendment to this use permit. 11. The operator of the food service use shall be responsible for the clean-up of all on-site and off-site trash, garbage and litter generated by the use. 12. The area outside of the food establishment, including the public sidewalks, walkways or common walkways, shall be maintained in a clean and orderly manner in accordance with the practical program for the control of litter, spills and stains on site and on adjacent properties. 13. If this business is sold or otherwise comes under different ownership, the current business owner/property owner/leasing company shall notify the future owners/assignees of the conditions of this approval. 14. The facility shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. Grease interceptors shall be installed on all fixtures in the restaurant where grease may be introduced into the drainage systems, unless otherwise approved by the Building Department and the Public Works Department. A grease interceptor or other grease collection device shall be installed to the satisfaction of the Building Department. 15. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors, which may include the provision of fully self-contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 16. The applicant ls required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City adopted version of the Uniform Building Code including any local amendments. The construction plans must meet all applicable State Disabilities Access requirements. Adequate access and exiting must be approved by the Building Department, and approval from the Orange County Health Department is required prior to permit issuance. Staff Approval No. SA2004-018 (PA2004-220) 1. The existing Condition of Approval No. 6 is revised to read as follows: 6. "Exclusive customer seating and/or stand-up counter space shall be prohibited outside of the subject eating and drinking establishment (outdoor dining or seating outside of the facility is prohibited, unless an accessory outdoor dining permit is first approved.) Any Zoning Administrator Resolution No. ZA2021-057 Page 13 of 14 01-25-19 increase of seating and/or stand-up counter space for more than 8 patrons 17 patrons shall require the approval of an amendment to this use permit. 2. The Planning Director or the Planning Commission may add to or modify conditions of approval to this use permit or revoke this permit upon a determination that the operation, which is the subject of this approval causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. Outdoor Dining Permit No. OD2004-002 (PA2004-220) 1. Development shall be in substantial conformance with the approved plot plan and floor plan, except as noted in the following conditions. (No longer applicable) 2. The accessory outdoor dining shall be used in conjunction with the related adjacent food establishment and shall be limited to Cafe Express, with 75 sq. ft. maximum (gross area), as proposed (25 percent of the indoor net public area of 300 sq. ft.), unless a use permit is first approved by the Planning Commission. The area is calculated at 25 square feet for each table with three accompanying seats for a maximum of three tables and nine seats, total. 3. The area outside of the food establishment, including the public and common area sidewalks, shall be maintained in a clean and orderly manner. Public sidewalks may be subject to periodic steam cleaning as required by the Planning Department. 4. The facility shall be designed to meet exiting and fire protection requirements as specified by the Uniform Building Code and shall be subject to review and approval by the Building Department. 5. The project shall comply with State Disabled Access requirements. 6. The seating adjacent to the food use facility shall be limited to the area as delineated on the approved site plan only. The approved outdoor dining area shall be located on a solid surface in accordance with the approved floor plan or seating plan. The outdoor dining use shall be limited to nine seats grouped around three tables. 7. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The use of outside loudspeakers, paging system or sound system shall be prohibited in the outdoor dining area. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. Chapter 10.26 provides, in part, that the sound shall be limited to no more than depicted below for the specified time periods: Zoning Administrator Resolution No. ZA2021-057 Page 14 of 14 01-25-19 Between the hours of 7:00 a.m. and 10:00 p.m.; Between the hours of 7:00 a.m. and 10:00 p.m.; interior exterior interior exterior Measured at the property line of commercial zoned property: N/A 65 dBA N/A 60 dBA Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA 8. The applicant shall retain a qualified engineer specializing in noise/acoustics to monitor the sound generated by the outdoor dining activity to ensure compliance with these conditions, if required by the Planning Director in response to noise complaints. 9. The use of area heaters shall be approved by the Building Department and the Fire Department prior to installation or use. The use of propane heaters and the storage of propane containers on the premises is prohibited, unless otherwise approved by the Fire Department. 10. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current owner or the leasing company. 11. The Planning Department may add to or modify conditions of approval to this outdoor dining permit or revoke this approval upon a finding of failure to comply with the conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing the food establishment. The Planning Director or the Planning Commission may also revoke this permit upon a determination that the operation, which is the subject of this approval, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 12. The hours of operation of the outdoor dining area are limited to between 7:00 a.m. and 6:00 p.m. daily. Any increase in the hours of operation shall be subject to the approval by the Planning Director. Any request for operating hours between 6:00 p.m. and 7:00 a.m. shall require approval by the Planning Commission. 13. Alcoholic beverage service shall be prohibited in the outdoor dining areas, unless approval is obtained from the Planning Commission in conjunction with an amendment to the use permit and this application. (no longer applicable)